BY SETH STOUGHTON, 69 U. Miami L. Rev. 429 (2015).
Introduction: How can law be a mechanism for police reform? The most familiar answer, for legal scholars who work on the regulation of law enforcement, is as a deterrent: the law sets some limit on police behavior and imposes some sanction for violations. Two examples that fit neatly within the deterrence model are civil suits brought under 42 U.S.C. § 1983, which provides a cause of action for constitutional torts by state officials acting under the color of law, and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,which provides the federal analog. The exclusionary rule, which judges invoke to suppress illegally obtained evidence, is authorized, at least in its modern incarnation, only because of its ability to deter police officers from engaging in constitutional misconduct.Both civil liability and the exclusionary rule are tremendously important, and both have been the object of penetrating academic analyses and critiques penned by any number of courts and commentators. But neither they nor the deterrent model more generally are the only methods through which the law can affect police behaviors.
Building on prior work in which I explored laws that have an incidental regulatory effect on police practices and officer behavior,this article discusses the potential for evidentiary considerations to change both police training and agency culture. The underlying concept grew out of a symposium, titled Leading from Below, hosted by the University of Miami Law Review in February 2014, which explored the real-world influence of district court judges’ authority and discretion. In my portion of the event, I framed my comments as an attempt to identify the inter- section of trial court judges and police officers. Officers provide information to, and in, court. They offer their observations and conclusions in support of arrest and search warrant applications. They are witnesses in suppression hearings, probation and parole hearings, and depositions. And, of course, they testify in the civil and criminal cases that go to trial. They are, in short, subject to evidentiary rulings.
Can evidentiary considerations play a role in reforming police behavior? In this article, I offer an optimistic, though not unqualified, conclusion: yes. In Part II, I demonstrate how evidentiary considerations have shaped not just police behavior but also the culture of policing itself. Cultural change is a critical component of meaningful police reform; one who seeks to change some aspect of policing must take into account the role of culture in shaping the objectionable behavior. For example, two much-discussed aspects of modern policing—the adoption of vehicle-based patrol as a replacement for foot patrol and the transition of police departments from social service organizations to dedicated crime-fighting agencies—are resistant to modification because they are the result of changes to the very culture of law enforcement. But police culture is neither independently organic nor develops in a vacuum. The development of a police culture depends, in large part, on external factors including the legal rules in which the culture develops.Here, I focus on three examples of how the culture and practices of law enforcement have been shaped by different evidentiary considerations. The warnings required by Miranda v. Arizona,first loudly denounced by politicians and police administrators alike, have become a symbol of police professionalism, even for the minority of law enforcement administrators who would get rid of the warnings altogether. Similarly, the perceived need to maintain an unbroken chain of custody for evidence has led police agencies to take great pride and to invest millions of dollars in state-of-the-art property storage and evidence tracking facilities. Finally, the popular enthusiasm for forensic investigations has changed the police culture, which has seen the previously unknown and often unappreciated “crime scene technicians,” responsible for collecting and, to some extent, analyzing evidence, morph into highly professional “forensic scientists.”
In Part III, I explore the possibility of using evidentiary rulings to further advance reform, focusing on the use of officers’ opinion testimony. Police testimony often straddles the line between lay and expert testimony. Officers routinely testify not just to their personal observations, but also to offer conclusions that they base on their training and experience. Police officers testify on a range of topics that include indicators of suspicion and criminality, police practices, and community norms. They identify neighborhoods as high-crime areas, recognize hand-to-hand drug transactions, describe when deadly force is an appropriate response, articulate the modus operandi of narcotics traffickers, explain why a particular set of circumstances aroused reasonable suspicion, and translate coded language recorded in a wiretapped phone call—and that is just the start.
Each of these examples, and any number of others, requires specialized knowledge, experience, or training. Unfortunately, under the existing evidentiary framework, police officer testimony is frequently admitted in a way that blurs the already muddy line that separates lay and expert testimony, leading to three distinct problems. First, an officer may provide what is undeniably lay testimony, but using language that indicates a particular expertise. Dressing a lay opinion in the robes of expertise risks artificially altering the fact-finder’s determination of credibility, presenting the officer as more knowledgeable, and thus more credible, than the rules of evidence would suggest or permit. Second, an officer may offer, or a prosecutor may solicit, expert testimony dressed in the guise of a lay opinion. Here, the error is in allowing evidence that has not gone through the reliability screening that the rules governing expert testimony require, effectively risking the admission of a “bad” expert opinion. Finally, and most importantly for the ultimate thesis of this article, an officer’s statements, even when he speaks as an expert, may lack the reliability that expert testimony is supposed to demonstrate. An expert’s opinion is often based on information that is not, and which could not be, admitted into evidence; therefore, the rules of evidence require expert testimony to be especially reliable. But police training, unlike scientific or academic training, is often informal, based on anecdotes and the collective knowledge of the law enforcement community rather than on any particular methodology or approach to analysis. Because they have not been put through the rigor that we expect in other disciplines, an officer’s expert conclusions and opinions may lack the foundation upon which their authority should be built. I argue in Part III that an evidentiary framework that requires a more searching analysis of the reliability of officer opinion testimony could lead to a change in police training that could, in turn, change police culture for the better.
In Part IV, I address several theoretical and practical concerns that limit the potential of evidentiary considerations to serve as a mechanism for police reform. I conclude that, while the impact of evidentiary considerations is neither certain nor the appropriate way to address all aspects of policing, it can be a useful addition to the broader conversation about police reform. . . . Full Article.
Recommended Citation: Seth Stoughton, Evidentiary Rulings as Police Reform, 69 U. Miami L. Rev. 429 (2015).